For Students Accused Of Campus Rape, Legal Victories Win Back Rights

As colleges have been cracking down on campus sexual assault, some students have been complaining that schools are going too far and trampling the rights of the accused in the process.

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Originally published on January 4, 2016 1:53 am

College students can't miss the warnings these days about the risk of campus sexual assault, but increasingly, some students are also taking note of what they perceive as a different danger.

"Once you are accused, you're guilty," says Parker Oaks, one of several Boston University students stopped by NPR between classes. "We're living in a society where you're guilty before innocent now."

Xavier Adsera, another BU student, sounds a similar theme. "We used to not be fair to women on this issue," he says. "Now we're on the other extreme, not being fair to guys."

As colleges crack down on sexual assault, some students complain that the schools are going too far and trampling the rights of the accused in the process. In recent months, courts around the nation have offered some of those students significant victories, slamming schools for systems that are stacked against the accused.

"Schools are overcorrecting," says a student from the University of California, San Diego. "People like me are always getting hurt."

The student, who was suspended last spring after a fellow student accused him of sexual assault, asked to remain anonymous to protect his reputation. He says he was shocked by the accusation and denies any nonconsensual contact. He and his accuser had been hanging out, texting, partying and studying together on friendly terms for months after the alleged assault, he says. And he says he still has text messages to prove it, including her messages asking to come over to his place and share drinks, or "pre-game," together before a party.

But he says he never had a chance to make his case because the school wouldn't let him introduce his text messages as evidence, challenge the investigator or effectively cross-examine his accuser.

"I was so angry because that was really my sole opportunity to defend myself," he says.

So he took his case to court, filing as John Doe, and won what's being called a landmark ruling against UC-San Diego. The judge said the school's process was unfairly skewed against Doe and ordered the school to reinstate him. "While the Court respects the university's determination to address sexual abuse and violence on its campus," wrote Superior Court Judge Joel M. Pressman, "the hearing against petitioner was unfair."

"I was ecstatic at that point," Doe says. "It kind of took some b**** for a judge to come out and make the decision that they made, because every single point that we raised about unfairness and lack of evidence, the judge agreed with."

"A case like this makes for a really easy lesson to say, 'This is what not to do,' " says Western New England University law school professor Erin Buzuvis, who blogs about sexual assault and also consults to universities on how to handle allegations. The San Diego ruling is one of a recent flurry of decisions slamming schools for systems stacked against accused students.

In the past few months, Middlebury College and the University of Southern California were both ordered to reinstate expelled students. So was the University of Tennessee, Chattanooga after a judge ruled the school was basically upending a fundamental principle of justice by making an accused perpetrator prove he wasn't guilty.

"I've looked at what a university has done and thought, 'Oh, gosh, what are you thinking?' " Buzuvis says.

Some 50 challenges lodged by accused students are now in the pipeline; that's up from about a dozen just two years ago. Even one of the more brazen lawsuits, which claims a kind of reverse discrimination in federal court, recently logged a rare (albeit preliminary) legal victory. The case, against Washington and Lee University, argues that overzealous administrators, who are using Title IX to crack down on gender discrimination and sexual assault, are actually violating the federal law at the same time by systematically discriminating against men. Most such cases filed in federal court have failed to get out of the box, but a judge allowed the claim against Washington and Lee to at least survive a first hurdle.

At the same time, the public conversation around campus sexual assault is beginning to put more focus on due process for accused students, and many campuses have been adding new protections for accused students — like the right to an attorney.

Joe Cohn, who's been advocating for the rights of the accused with the Foundation for Individual Rights in Education, says he's heartened that two new bills on campus sexual assault include robust due-process protections. (The bills are the Fair Campus Act and the Safe Campus Act.) He says he also sees it as a victory that he — as an advocate for the accused — was invited to testify at a recent congressional hearing. But once there, he says, he was struck by how much more the pendulum has yet to swing.

At the hearing, Democratic Rep. Jared Polis of Colorado wondered aloud why campuses don't decide cases using a lower standard of evidence. "I mean, if 10 people are accused and under reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people," he said. Polis has since walked back his comments, saying he "went too far by implying that I support expelling innocent students from college." But Cohn says he continues to be dismayed that the comment was made and that it drew applause.

"We are a ways away from reaching the kind of equilibrium that will provide fundamental fairness to everyone involved," Cohn says.

In some ways, advocates say, accused students are following much the same path that victims did: first suffering silently, thinking they're the only ones, then slowly connecting with others, then with attorneys and eventually becoming a force to be reckoned with.

"The irony isn't lost on us," says Sherry Warner-Seefeld, founder of a group called Families Advocating for Campus Equality. "The parallels are uncanny, frankly."

Warner-Seefeld started the group a year ago after her son was suspended for sexual assault and then won on appeal. Now, Seefeld says, she can barely keep up with calls from guys in the same situation. Many accused students see themselves as victims, she says, and they feel as traumatized as victims of sexual assault.

"If we dare to suggest such a thing, there are a number of people that go pretty hysterical about that," she says. "But we know for a fact that there is huge amounts of depression [among students who have been accused and punished after a hearing they claim was unfair]. There have been suicides. It's really tragic."

Warner-Seefeld says she's encouraged by what she sees as a new trend in the courts. She says there's no question that schools have historically had a problem: automatically doubting and blaming accusers. And she's quick to add that it's still an issue. But schools need to fix that, she says, without creating a new problem by automatically doubting and blaming the accused.

Copyright 2016 NPR. To see more, visit http://www.npr.org/.

Transcript

STEVE INSKEEP, HOST:

Colleges are under pressure to crack down on campus sexual assault. But they've also been facing pushback from accused students who say schools have been going too far. Some of these accused students say that their rights are being violated. And in the past few months, some of those students have seen significant victories in court. NPR's Tovia Smith reports.

TOVIA SMITH, BYLINE: Students kind of can't miss the warnings these days about the risk of campus sexual assault. But increasingly, some students are also taking note of what some perceive as a different danger.

PARKER OAKS: Once you're accused, you're guilty. We're living in the kind society where you're guilty before innocent now.

SMITH: It doesn't take long to find concerns among male students stopped randomly at Boston University, like Parker Oaks, Peter Brodeur, Sam Howard (ph) and Xavier Adsera.

UNIDENTIFIED MAN #1: You just got to be careful. It's like the woman's word is like the final word.

UNIDENTIFIED MAN #2: You can have a hundred percent faith in the system.

XAVIER ADSERA: Yeah, I think that we used to not be fair to women. But now that we are on the other extreme, we're not being fair to guys.

SMITH: As another student from the University of California at San Diego put it, schools are simply overcorrecting.

UNIDENTIFIED MAN #3: I think that schools need to stop because people like me are just boys getting hurt.

SMITH: This student, who asked to remain anonymous to protect his reputation, was suspended last spring after a fellow student accused him of sexual assault. He says he was shocked by the accusation. He and the alleged victim had been hanging out, texting, partying and studying together for months after the alleged assault. But he says he never had a chance to make his case 'cause the school wouldn't let him introduce his text messages as evidence or challenge the investigator or effectively cross-examine his accuser.

UNIDENTIFIED MAN #3: I was so angry because that was really my sole opportunity to defend myself.

SMITH: So he took his case to court, filing as John Doe, and he ended up with a landmark ruling against the University of California. The judge called Doe's hearing fundamentally unfair and forced the school to reinstate him.

UNIDENTIFIED MAN #3: I was ecstatic at point. It kind of took some [expletive] for a judge to come out and make the decision that they made because every single point that we had raised about unfairness and lack of evidence, the judge agreed with.

ERIN BUZUVIS: You know, a case like this makes for a really easy lesson to say, like, this is what not to do (laughter).

SMITH: New England law school professor Erin Buzuvis has been watching a recent flurry of court decisions slamming schools for systems stacked against the accused. In the past few months, Middlebury College and University of Southern California were both ordered to reinstate expelled students. So was the University of Tennessee at Chattanooga, after a judge ruled the school was basically upending a fundamental principle of justice by making an accused perpetrator prove he wasn't guilty.

BUZUVIS: I've looked at what a university has done and thought, oh, gosh, what (laughter) - you know, what are you - what are you thinking?

SMITH: Some 50 challenges by accused students are now in the pipeline, up from about a dozen just two years ago. And even one of the more brazen lawsuit, claiming a kind of reverse discrimination in federal court recently logged a rare - albeit small - legal victory. And colleges seem to be taking notes. Many are adding new protections for accused students, like the right to an attorney. And the public conversation, in general, is putting new focus on the accused.

JOE COHN: Due process is paramount, and due process requires reasonable determinations.

SMITH: Joe Cohn, an advocate for the rights of the accused with a group called FIRE, says he sees it as a victory that he was even invited to testify at a recent congressional hearing. He's also heartened by two new bills that include robust due process protections. But on the other hand, Cohn says, he was shocked at the hearing to find some calls for even less due process, like this suggestion from Democratic Congressman Jared Polis.

JARED POLIS: I mean, if there's 10 people that have been accused, and, you know, under a reasonable likelihood standard, maybe one or two did it, it seems better to get rid of all 10 people.

SMITH: Polis has since clarified he doesn't support expelling innocent students. But Cohn says it is telling and troublesome that the original comment drew loud applause.

COHN: We're a ways away from reaching the kind of equilibrium that will provide fundamental fairness to everyone involved.

SMITH: In some ways, advocates say, accused students are following much the same path that victims did - fist suffering silently, thinking they were the only ones, then slowly connecting with others, then with attorneys and eventually becoming a force to be reckoned with.

SHERRY WARNER-SEEFELD: The irony isn't lost on us. The parallels are uncanny, frankly.

SMITH: Sherry Warner-Seefeld founded a group called FACE a year ago after her son was suspended for sexual assault and then won on appeal. Now, Seefeld says, many accused students who see themselves as victims feel as traumatized as victims of sexual assault.

WARNER-SEEFELD: If we dare to suggest such a thing, there are a number of people that go pretty hysterical about that. But we know for a fact that there is huge amounts of depression, that there have been suicides. It is really tragic.

SMITH: Warner-Seefeld says she's encouraged by what she sees as a trend in the courts. There's no question, she says, that schools have historically had a problem automatically doubting and blaming victims, and she's quick to add it's still issue. But schools need to fix that, she says, without creating a new problem by automatically doubting and blaming the accused. Tovia Smith, NPR News. Transcript provided by NPR, Copyright NPR.